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EXHIBIT 4.3.4
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SUPPLEMENTAL PREFERRED SECURITIES
GUARANTEE AGREEMENT
AHL FINANCING
DATED AS OF OCTOBER 29, 1999
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
PAGE
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SECTION 1.1. DEFINITION OF TERMS....................................... 1
ARTICLE II
CONCERNING THE MERGER
SECTION 2.1 ASSUMPTION OF GUARANTEE.................................... 2
ARTICLE III
CONCERNING THE PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE PREFERRED GUARANTEE TRUSTEE....... 2
SECTION 3.2 CERTAIN RIGHTS OF THE PREFERRED GUARANTEE TRUSTEE.......... 3
ARTICLE IV
THE ADDITIONAL GUARANTEE
SECTION 4.1 ADDITIONAL GUARANTEE....................................... 3
SECTION 4.2 WAIVER OF NOTICE AND DEMAND................................ 3
SECTION 4.3 OBLIGATIONS NOT AFFECTED................................... 3
SECTION 4.4 RIGHTS OF HOLDERS.......................................... 4
SECTION 4.5 GUARANTEE OF PAYMENT....................................... 5
SECTION 4.6 SUBROGATION................................................ 5
SECTION 4.7 INDEPENDENT OBLIGATIONS.................................... 5
ARTICLE V
SUBORDINATION
SECTION 5.1 RANKING.................................................... 5
ARTICLE VI
MISCELLANEOUS
RATIFICATION OF ORIGINAL GUARANTEE AGREEMENT AND THIS
SECTION 6.1 AGREEMENT.................................................. 6
SECTION 6.2 PREFERRED GUARANTEE TRUSTEE NOT RESPONSIBLE FOR RECITALS... 6
SECTION 6.3 TERMINATION................................................ 6
SECTION 6.4 SUCCESSORS AND ASSIGNS..................................... 6
SECTION 6.5 AMENDMENTS................................................. 6
SECTION 6.6 NOTICES.................................................... 7
SECTION 6.7 BENEFIT.................................................... 7
SECTION 6.8 GOVERNING LAW.............................................. 7
SECTION 6.9 SEPARABILITY............................................... 7
SECTION 6.10 COUNTERPARTS............................................... 8
SECTION 6.11 EFFECTIVENESS.............................................. 8
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SUPPLEMENTAL PREFERRED SECURITIES GUARANTEE AGREEMENT, dated as of October
29, 1999 (this "Agreement") among The Allstate Corporation, a Delaware
corporation (the "Additional Guarantor"), A.P.L. Acquisition Corporation, a
Delaware corporation and wholly-owned subsidiary of the Additional Guarantor
(the "Successor Guarantor" or "Merger Sub"), American Heritage Life Investment
Corporation, a Florida corporation (the "Original Guarantor"), and Bank One
Trust Company, National Association (successor in interest to The First National
Bank of Chicago), as trustee (the "Preferred Guarantee Trustee").
WHEREAS, in connection with the issuance by AHL Financing, a Delaware
statutory business trust (the "Issuer"), of $103,500,000 aggregate liquidation
amount of its 6.75% Trust Originated Preferred Securities (the "Preferred
Securities") representing undivided beneficial interests in the assets of the
Trust, the Original Guarantor and the Guarantee Trustee entered into a Preferred
Securities Guarantee Agreement dated as of June 27,1997 (the "Original Guarantee
Agreement"), pursuant to which the Original Guarantor irrevocably and
unconditionally agreed, to the extent set forth therein, to pay to the Holders
of the Preferred Securities the Guarantee Payments (as defined in the Original
Guarantee Agreement) and to make certain other payments on the terms and
conditions set forth therein (collectively, the "Original Guarantee");
WHEREAS, the Original Guarantor intends to consummate a transaction
involving the merger (the "Merger") of the Original Guarantor with and into,
Merger Sub, pursuant to the Agreement and Plan of Merger and Reorganization
among the Additional Guarantor, Merger Sub and the Original Guarantor dated as
of July 8, 1999 (the "Merger Agreement");
WHEREAS the Additional Guarantor proposes in and by this Agreement to
unconditionally and irrevocably guarantee, on a subordinated basis, the
Successor Guarantor's obligation to pay to the Holders of the Preferred
Securities the Guarantee Payments and the other obligations of the Successor
Guarantor under the Original Guarantee Agreement;
NOW THEREFORE, in consideration of the premises, the Original Guarantor,
the Successor Guarantor, the Additional Guarantor and the Preferred Guarantee
Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) a term defined in the Original Guarantee Agreement has the same meaning
when used in this Agreement;
(b) a term defined anywhere in this Agreement has the same meaning
throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the term "Effective Time" shall have the meaning given to it in the
Merger Agreement.
ARTICLE II
CONCERNING THE MERGER
SECTION 2.1 ASSUMPTION OF GUARANTEE.
As contemplated by Section 9.1 of the Original Guarantee Agreement, the
Successor Guarantor hereby acknowledges that, from and after the Effective Time
as successor to the Original Guarantor by operation of law, it will assume all
the obligations of the Original Guarantor under the Original Guarantee
Agreement.
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ARTICLE III
CONCERNING THE PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE PREFERRED GUARANTEE TRUSTEE.
(a) This Agreement shall be held by the Preferred Guarantee Trustee for the
benefit of the Holders of the Preferred Securities, and the Preferred Guarantee
Trustee shall not transfer this Agreement to any Person except a Holder of
Preferred Securities exercising his or her rights pursuant to Section 5.4(b) of
the Original Guarantee or to a Successor Preferred Guarantee Trustee on
acceptance by such Successor Preferred Guarantee Trustee of its appointment to
act as Successor Preferred Guarantee Trustee. The right, title and interest of
the Preferred Guarantee Trustee shall automatically vest in any Successor
Preferred Guarantee Trustee, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Preferred Guarantee Trustee.
(b) With respect to the guarantee being provided by the Additional
Guarantor in this Agreement, the Preferred Guarantee Trustee shall have all of
the powers and duties set out in Section 3.1 of the Original Guarantee
Agreement.
SECTION 3.2 CERTAIN RIGHTS OF THE PREFERRED GUARANTEE TRUSTEE.
Subject to the provisions of Section 3.1, the Preferred Guarantee Trustee
shall have the same rights with respect to the guarantee provided by the
Additional Guarantor as are set out in Section 3.2 of the Original Guarantee
Agreement.
ARTICLE IV
THE ADDITIONAL GUARANTEE
SECTION 4.1 ADDITIONAL GUARANTEE.
From and after the Effective Time, the Additional Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer, the Original
Guarantor, or the Successor Guarantor), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or assert
(the "Additional Guarantee"). The Additional Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Original Guarantor to the Holders or by causing the Issuer or the Successor
Guarantor to pay such amounts to the Holders.
SECTION 4.2 WAIVER OF NOTICE AND DEMAND.
The Additional Guarantor hereby waives notice of acceptance of this
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer,
the Successor Guarantor or any other Person before proceeding against the
Additional Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 4.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Additional
Guarantor under this Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
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(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Repayment Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Repayment Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period on the
Debentures or any extension of the maturity date of the Debentures permitted by
the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 4.3 that the obligations of the Additional Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Additional Guarantor with respect to the happening of any of the
foregoing.
SECTION 4.4 RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Agreement or exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Agreement;
(b) If the Preferred Guarantee Trustee fails to enforce this Agreement, any
Holder of Preferred Securities may institute a legal proceeding directly against
the Additional Guarantor to enforce its rights under this Agreement, without
first instituting a legal proceeding against the Issuer, the Successor
Guarantor, the Preferred Guarantee Trustee or any other Person. Notwithstanding
the foregoing, if the Additional Guarantor has failed to make a Guarantee
Payment, a holder of Preferred Securities may directly institute a proceeding
against the Additional Guarantor for enforcement of the Additional Guarantee for
such payment. The Additional Guarantor waives any right or remedy to require
that any action on this Agreement be brought first against the Issuer, the
Successor Grantor or any other person or entity before proceeding directly
against the Additional Guarantor.
SECTION 4.5 GUARANTEE OF PAYMENT.
This Agreement creates a guarantee of payment and not of collection.
SECTION 4.6 SUBROGATION.
The Additional Guarantor shall be subrogated to all rights, if any, of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Additional Guarantor under this Preferred Securities
Guarantee; provided, however, that the Additional Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement. If any amount shall be paid to the Additional Guarantor in
violation of the preceding sentence,
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the Additional Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 4.7 INDEPENDENT OBLIGATIONS.
The Additional Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Additional Guarantor shall be liable as principal and
as debtor hereunder to make Guarantee Payments pursuant to the terms of this
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 4.3 hereof.
ARTICLE V
SUBORDINATION
SECTION 5.1 RANKING.
This Preferred Securities Guarantee will constitute an unsecured obligation
of the Additional Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Additional Guarantor except those
liabilities of the Additional Guarantor made pari passu or subordinate by their
terms, (ii) pari passu with the most senior preferred or preference stock now or
hereafter issued by the Additional Guarantor and with any guarantee now or
hereafter entered into by the Additional Guarantor in respect of any preferred
or preference stock of any Affiliate of the Additional Guarantor, and (iii)
senior to the Additional Guarantor's common stock.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 RATIFICATION OF ORIGINAL GUARANTEE AGREEMENT AND THIS AGREEMENT.
The Original Guarantee Agreement, as supplemented by this Agreement, is in
all respects ratified and confirmed, and this Agreement shall be deemed part of
the Original Guarantee Agreement in the manner and to the extent herein and
therein provided.
SECTION 6.2 PREFERRED GUARANTEE TRUSTEE NOT RESPONSIBLE FOR
RECITALS.
The recitals herein contained are made by the Original Guarantor, the
Successor Guarantor and the Additional Guarantor and not by the Preferred
Guarantee Trustee, and the Preferred Guarantee Trustee assumes no responsibility
for the correctness thereof. The Preferred Guarantee Trustee makes no
representation as to the validity or sufficiency of this Agreement.
SECTION 6.3 TERMINATION.
This Agreement shall terminate upon (i) full payment of the Repayment Price
of all Preferred Securities, (ii) upon the distribution of the Debentures to the
Holders of all of the Preferred Securities or (iii) upon full payment of the
amounts payable in accordance with the Declaration upon liquidation of the
Issuer. Notwithstanding the foregoing, this Additional Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any sums paid under the
Preferred Securities or under this Preferred Securities Guarantee.
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SECTION 6.4 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Additional
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding.
SECTION 6.5 AMENDMENTS.
Except with respect to any changes that do not adversely affect the rights
of Holders (in which case no consent of Holders will be required), this
Agreement may only be amended with the prior approval of the Holders of at least
a Majority in liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all the
outstanding Preferred Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Securities apply to the
giving of such approval.
SECTION 6.6 NOTICES.
All notices provided for in this Agreement shall be in writing, duly signed
by the party giving such notice, and shall be delivered, telecopied or mailed by
registered or certified mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred Guarantee
Trustee's mailing address set forth in the Original Guarantee;
(b) If given to the Additional Guarantor, at the Additional Guarantor's
mailing address set forth below (or such other address as the Additional
Guarantor may give notice of to the Holders of the Preferred Securities):
Treasurer
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, Xxxxxxxx, 00000-0000
(c) If given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 6.7 BENEFIT.
This Additional Guarantee is solely for the benefit of the Holders of the
Preferred Securities and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
SECTION 6.8 GOVERNING LAW.
This Agreement shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York.
SECTION 6.9 SEPARABILITY.
In case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provisions of this Agreement, but this Agreement shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein.
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SECTION 6.10 COUNTERPARTS.
This Agreement may be executed in any number of counterparts each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
SECTION 6.11 EFFECTIVENESS.
This Agreement shall become a legally effective and binding instrument upon
the later of (i) execution and delivery hereof by all parties hereto, and (ii)
the Effective Time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION
By: /s/ T. O'XXXX XXXXXXX
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Name: T. O'Xxxx Xxxxxxx
Title: Chairman and CEO
THE ALLSTATE CORPORATION
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Treasurer
A.P.L. ACQUISITION CORPORATION
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Treasurer
BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION
as Preferred Guarantee Trustee
By: /s/ XXXXXX XXX XXXXXXX
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Name: Xxxxxx Xxx Xxxxxxx
Title: Vice President
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